Mavoloni Company Ltd v Land Registrar - Thika & 14 others [2020] KEELC 2265 (KLR)
The bottom line
#In Kenya, you must ask the Land Registrar to remove a land restriction before going to court — skipping that step makes your case fail.
What this practically means
#Executive summary
#Key legal issues
#Distinction between inhibition, caution and restriction under the Land Registration Act
These are terms of art that cannot be used interchangeably: an inhibition is granted by the court, a caution is registered by a person claiming a right over land, and a restriction is registered by the Land Registrar
The court distinguished the three instruments by reference to their source and purpose. An inhibition issues from the court; a caution is lodged by a person claiming a contractual or other right over land; a restriction is registered by the Registrar either suo moto or on application, for purposes such as preventing fraud or for other sufficient cause, for a particular period or until a specified event or further order.
Procedural sequence for removal of a restriction under section 78
The Registrar must be moved first under section 78(1); the court may only order removal under section 78(2) upon application of an affected proprietor after notice to the Registrar, and after the Registrar has declined to act
Section 78(1) empowers the Registrar, on application by an interested person or on his own motion and after hearing affected parties, to remove or vary a restriction. Section 78(2) permits the court, on application of an affected proprietor upon notice to the Registrar, to order removal. The court held the statutory scheme requires the Registrar's process to be exhausted before resort to the court; sidestepping section 78(1) renders the application incompetent and deprives the court of jurisdiction.
Locus standi of a non-party applying within an existing suit
A non-party cannot apply within a suit for lifting of a restriction; she must either join the suit as an interested party or file a separate suit
The Applicant, an administrator of the estate of the registered proprietor of the restricted parcel, was neither the deceased proprietor nor a party to the Originating Summons between the Plaintiff and the Defendants. The court held that a person aggrieved by a Registrar's restriction who is not party to pending litigation must first seek joinder as an interested party or institute a separate suit for lifting of the restriction; failing both, the application must fail.
Legal principles established
#- Before moving the court for lifting of a restriction, a party must first apply to the Land Registrar under section 78(1) of the Land Registration Act; the court's jurisdiction under section 78(2) is only triggered after the Registrar has declined to lift the restriction
- A person who is not a party to a suit has no locus standi to apply within that suit for lifting of a restriction; such a person must join the suit as an interested party or file a separate suit
Court orders
#- 1.The Application dated 13th May, 2019 is dismissed
- 2.Costs of the application to the Plaintiff and the 5th Defendant
- Jurisdiction invoked
- Sections 73, 76 and 78 of the Land Registration Act (No. 3 of 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mavoloni Company Ltd v Land Registrar - Thika & 14 others [2020] KEELC 2265 (KLR)", Case Analysis (2020). Originating Summons dated 15th September, 2008 (amended 27th June, 2019); Notice of Motion dated 13th May, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2265/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.